Current Affairs and Policy Analysis

UK Courts ‘Becoming Abortion Activists’

A High Court in Belfast recently ruled, in a case brought by Sarah Ewart in her own name, that Northern Ireland’s law protecting the unborn child was incompatible with current human rights obligations in relation to fatal fetal abnormality. Today’s ruling should worry us all as it represents an egregious case of judicial activism. Several points bear analysis:

1. Judicial activism gives birth to even more judicial activism

In June 2018, the Supreme Court issued an odd decision in which it delivered a voluminous opinion on the incompatibility of Northern Ireland’s abortion law with existing human rights law despite finding that the claimants had no standing to bring the claim in the first place. As Lord Reed rightly suggested at paragraph 334 of that judgment, it was highly unusual for the Court, after finding that the Appellant did not have standing to bring the case, to nonetheless draft a 143 page opinion of no-binding force whatsoever saying that they would have found elements of Norther Ireland’s laws on abortion to be incompatible with the Europe Convention on Human Rights. It was that very decision that the lower court in Belfast relied upon in making its findings in last week’s ruling.

More so, the question of the petitioner’s “victim status”, or standing – a threshold question in any legal claim – also smacked of judicial activism. Standing requires the person bringing the claim to demonstrate a sufficient connection to the harm being challenged. In the instant matter, the claimant successfully obtained an abortion within England.

While the court found her testimony compelling when she gave evidence that her experience felt like a conveyor belt, leaving her humiliated, the reality is that this would have been the fault of those who provided the abortion in England and not the doctors in Northern Ireland.

Furthermore, she claimed she was “denied” access to support and information about abortion out of fear of prosecution. This feeling too was wholly subjective as travelling for an abortion in a jurisdiction where it is lawful to procure one is protected under the law. Precisely stated, her testimony was based on feelings rather than any legal truths. Standing should have never been granted in this case.

2. Today’s ruling goes against the jurisprudence of the European Court of Human Rights

The High Court’s reasoning is remarkable in its inconsistencies in finding that the current Northern Irish law breaches the European Convention of Human Rights. No other court, apart from the aforementioned non-binding Supreme Court judgment, has ever suggested that the Convention confers a right to abortion.

The European Court of Human Rights, which is the Court tasked with interpreting the Convention, has gone so far on more than one occasion to explicitly say that the Convention does not confer a right to abortion. This was, for example, the language used by the Grand Chamber in A., B., and C. v. Ireland in paragraph 214 of its judgment. It was later reiterated by the Court in paragraph 96 of P. and S. v. Poland. The Court, in Martins Ribeiro v. Portugal, has gone so far as to say that having laws which prohibit abortion are not per se violative of the Convention. Moreover, when the Court was invited to strike down Ireland’s prohibition of abortion based on fatal fetal abnormality in 2006, it declined to do so in the case of D. v. Ireland. In 2013, the Council of Minister of the Council of Europe, which oversees the Court, also refused to recognise a Convention right to abortion.

While it is true that on several occasions the European Court of Human Rights has found violations by Member States for not giving access to abortion, it did so on the basis that in those circumstances the competent domestic law-making authority had explicitly legislated an exception allowing for abortion. Precisely stated, the Convention has supervisory authority over abortion laws that are already on the books, but Member States are free to legislate whatever laws they wish to protect the unborn, including a full prohibition.

Contrary to what the High Court has said therefore, there is no right to abortion and this could not be any clearer from the case-law of the European Court. Incidentally, if one goes through the 347 paragraphs of the Supreme Court’s judgment upon which the High Court relied, not once will they find a single case cited which suggests that the Convention confers a right to abortion.

3. The case is far from over

While the media is celebrating what they see as a landmark ruling, the reality is that this case has a long way to go. The High Court, first off, has not even issued a formal declaration of incompatibility. Even if it does so, under the Human Rights Act 1998, under which the court based its ruling, such a declaration does not necessarily change the law. Stormont would have every right to retain the legislation as it stands.

Beyond this, Northern Ireland still has numerous appeals available to it, including an appeal to the European Court of Human Rights if it should go so far. The Strasbourg court would then have to rule on whether UK domestic courts misinterpreted Convention law in light of the fact that its very clear and often-repeated jurisprudence holds to a wholly different position than that of the High Court.

4. Most importantly of all: the current abortion law in Northern Ireland saves lives

By comparison, levels of abortion in the rest of the United Kingdom shock the conscience. The reality is that every successful abortion means that a human life has been ended. There have been 9 million abortions in this nation since abortion became legal under the 1967 Abortion Act. Every procedural safeguard that was legislated back then has been eroded and are now largely ignored. Despite the mainstreaming of contraceptives, we still have more than 200,000 abortions in this nation every year.

In fact, a strong argument can be made that the United Kingdom is in breach of its international obligations by failing to take appropriate steps to avoid abortion, which in no case should be promoted as a method of family planning. Seemingly every step Westminster and our courts have taken is to eliminate any protections for the unborn child whatsoever. This has been borne out in the ever-increasing number of abortions taking place in this nation.

History will not judge us kindly

In 1857, the United States Supreme Court issued a ruling that would later go down in infamy. The Dred Scott v. Sanford ruling, in essence, held that people of African ancestry did not enjoy the same rights as other individuals in America and could be deemed to be property. That ruling aroused public outrage and was one of the antecedents of the Civil War which would begin 4 years later.

Many people on the bench in the United Kingdom, and in Westminster, do not hide their feelings that they feel the unborn child is not worthy of any protection whatsoever. Lady Hale, President of the Supreme Court, has gone so far as to liken an unborn unwanted child to a parasite in paragraph 7 of the Northern Ireland abortion ruling.

Like with Dredd Scott, I believe history will not judge us kindly for the 9 million children who never got to enjoy a Christmas, or summer holidays, or ever had the chance to fall in love or follow their dreams. Rather than feel the immense shame of 9 million lost children, our courts are becoming activists in creating even more abortions. We must pray for the United Kingdom. We must pray for our judiciary.

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